Commonwealth Director
of Public Prosecutions
GPO BOX 3104, Canberra ACT 2601
Level 3, 28 Sydney Avenue
Forrest ACT 2603
Telephone
(02) 6206 5666
Facsimile (02) 6257 5709
www.cdpp.gov.au
Your Reference:
Our Reference:
2022FI00004
11 April 2022
Trav S
Via Email:
xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Dear Trav S
FREEDOM OF INFORMATION REQUEST - NOTICE OF DECISION UNDER SECTION 26 OF THE
FREEDOM OF INFORMATION ACT 1982
I refer to your email to the Commonwealth Director of Public Prosecutions (CDPP) of 10 March 2022
in which you requested access to the fol owing:
1. Prosecution Policy of the Commonwealth – Guidelines for making of decisions in the
prosecution process [Part 1 of your request]
2. Offence guide’s [sic] for
-
General Dishonesty – section 135.1 of the Criminal Code
-
Conspiracy to defraud – section 135.4 of the Criminal Code
-
False or misleading information – section 137.1 of the Criminal Code
-
False or misleading documents – section 137.2 of the Criminal Code [Part 2 of your
request]
AUTHORISATION
I am a person authorised by the Director of Public Prosecutions to make decisions on requests for
access to documents under the
Freedom of Information Act 1982 (FOI Act). My name and position
are set out below.
RELEVANT MATERIAL
In reaching my decision I referred to the following:
• the terms of your request
• the document relevant to the request
• the FOI Act
• Guidelines published by the Office of the Information Commissioner under section 93A of
the FOI Act (The FOI Guidelines)
FINDINGS OF MATERIAL QUESTIONS OF FACT
My findings on material questions of fact in so far as they relate to your request are as follows:
On 10 March 2022 you made your FOI request by email via the Right to Know website.
On 10 March 2022 the CDPP acknowledged your request.
DECISION
A search of the electronic records of the CDPP was conducted.
Part 1 of your request
As advised to you in the email dated 10 March 2022 the
Prosecution Policy of the Commonwealth is
a publicly available document
at www.cdpp.gov.au/prosecution-process/prosecution-policy.
This document is released to you in full.
Part 2 of your request
Four documents within Part 2 of your request were located. These documents provide internal legal
guidance to CDPP prosecutors on offences against sections 135.1, 135.4, 137.1 or 137.2 of Schedule
1 to the
Criminal Code Act 1995 (Commonwealth) (the Criminal Code).
The documents are exempt in their entirety under section 42 of the FOI Act and I am refusing your
request for access to these documents.
REASONS FOR DECISION AND FINDINGS OF MATERIAL FACTS
Documents subject to legal professional privilege
A document is an exempt document under section 42(1) of the FOI Act if it is of such a nature that it
would be privileged from production in legal proceedings on the ground of legal professional
privilege.
I am satisfied that the CDPP Offence Guides on sections 135.1, 135.4, 137.1 and 137.2 of the
Criminal Code attract legal professional privilege.
I am satisfied that each of the following criteria has been met in relation to each document:
• that a solicitor/ client relationship exists between the Director of the CDPP and CDPP
lawyers, between CDPP lawyers, or between CDPP lawyers and partner agencies who refer
matters to the CDPP for potential prosecution
• that the dominant purpose of the Offence Guides is for the provision of legal advice
• that the advice is given in confidence
• that there is anticipated or actual litigation
• that there has been no waiver of privilege either express or implied
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Lawyer-client relationship
Legal professional privilege is capable of attaching to communications between an in-house legal
adviser and their employer, provided that the legal adviser is consulted in a professional capacity in
relation to a professional matter and the communications are made in confidence and arise from the
relationship of lawyer and client (
Waterford v Commonwealth (1987) 163 CLR 54).
The Office of the CDPP is established by the
Director of Public Prosecutions Act 1983 (DPP Act) and
consists of the Director and the members of staff of the Office who are legal practitioners. Section
16 of the DPP Act provides that the Director or member of the staff of the Office who is a legal
practitioner is in his or her official capacity entitled to practice as a barrister, solicitor or barrister
and solicitor in a Federal Court or in a Court of a State or Territory.
The relationship between the Director and the solicitors employed within the Office of the CDPP is
sufficient for the CDPP to be regarded as the ‘client for the purposes of legal advice provided by her
staff or by a Crown Prosecutor’ (
CDPP v Kinghorn [2020] NSWCCA 48). The CDPP and its legal
practitioners are also in a lawyer-client relationship with partner agencies and investigators in these
agencies and legal advice is provided by the CDPP in relation to actual or anticipated litigation.
Legal advice
The concept of ‘legal advice’ has been interpreted widely. It can extend to advice as to what should
prudently or sensibly be done in the relevant legal context (
Australian Wheat Board v Cole (No 5)
[2006] FCA 1234].
I find that the relevant CDPP Offence Guides were created for the dominant purpose of providing
legal in relation to the actual or anticipated prosecution of offences against sections 135.1, 135.4,
137.1 and 137.2 of the Criminal Code.
The Offence Guides are legal resources prepared by CDPP legal practitioners on behalf of the
Director. They are legal resources for CDPP legal practitioners and partner agencies who investigate
and refer briefs of evidence to the CDPP for assessment and prosecution in accordance with the
Prosecution Policy of the Commonwealth. The Offence Guides constitute legal advice and also
contain summaries of legal advice provided to officers of the CDPP.
Confidential communication and dominant purpose
The Offence Guides were prepared on the understanding that the usual and wel -established
relationship of confidence between lawyers and clients govern the communications. The legal advice
contained in the Offence Guides was prepared and held on a confidential basis for the dominant
purpose of giving legal and procedural advice on matters concerning prosecuting offences against
sections 135.1, 135.4, 137.1 and 137.2 of the Criminal Code.
The communications were confidential at the time they were made and remain confidential.
No waiver
Section 42(2) of the FOI Act provides that a document is not an exempt document if the person
entitled to claim the privilege in relation to the production of the document in legal proceedings
waives that claim.
A person who would otherwise be entitled to the benefit of legal professional privilege may waive
that privilege, either expressly or by implication. Legal professional privilege is waived if the conduct
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of the other person seeking to rely on the privilege is inconsistent with the maintenance of the
privilege.
The Offence Guides are available to CDPP partner agencies on a confidential basis, who are advised
that privilege attaches to the Offence Guides. This limited disclosure is not inconsistent with
maintaining confidentiality of the communications where the disclosure is to partner agencies for
the limited purpose directly related to the prosecution of the relevant sections of the Criminal Code.
Accordingly, I am satisfied that there has been no waiver.
FOI Guidelines
Section 93A of the FOI requires me to have regard to any guidelines by the Information
Commissioner. Guideline Part 5 – Exemptions requires me to consider whether ‘real harm’ would
result from releasing the Offence Guides. I consider that disclosure of the Offence Guides would
result in substantial prejudice to the CDPP in the on-going course of prosecutions or potential
prosecutions. It would undermine and inhibit the ful and frank provision of legal advice by the CDPP
in the course of anticipated or actual litigation between officers of the CDPP, and between the CDPP
and partner agencies.
The parts of the Offence Guides that are privileged cannot be separated from those parts which are
not. The Offence Guides are entirely exempt under section 42 of the FOI Act and it is not appropriate
to grant access to the documents with deletions pursuant to section 22(1) of the FOI Act.
RIGHTS OF REVIEW
Under section 26 of the FOI Act I am required to inform you of your rights of review.
Section 54 of the FOI Act gives you the right to apply for internal review of a decision refusing to
grant access to documents. An application for internal review of a decision must be made in writing
within 30 days of receipt of this letter. No particular form is required but it is desirable to set out in
the application the grounds on which you consider that the decision should be reviewed. An
application may be sent to
xxx@xxxx.xxx.xx or to the following postal address:
FOI Coordinator
Commonwealth Director of Public Prosecutions
PO Box 3104
CANBERRA ACT 2617
If a decision on internal review goes against you, you are entitled to seek a review of that decision by
the Information Commissioner. Alternatively, you are entitled to bypass the internal review process
and make an application directly with the Office of the Australian information Commissioner
pursuant to section 54L of the FOI Act.
An application to the Information Commissioner may be made in writing and should be directed to
the following address:
Information Commissioner (Reviews)
GPO Box 5218
Sydney NSW 2001
The Information Commissioner also accepts online requests via their website. You can locate the
relevant form at
www.oaic.gov.au
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Yours faithfully
Kirstin Duncan
Senior Federal Prosecutor
International Assistance Specialist Agencies
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